[S 3, 4, 5. Same as enacted.] Original note to § 5. "1 R. L., 318, § 1, modified."

[S 7, 8, 9, 10. Same as enacted.] Original note to § 7. "Laws of 1820, p. 200, and partly new."

[S 11. Same as enacted.] Original note. “The style of the court slightly varied."

[S 12. Same as enacted.] Original note. "1 R. L. 318, § 2, so altered as to give the court power to designate days."

66

[S 13, 14, 15. Same as enacted.] Original note. "§ 14, 15, new." [S 17, 18. Same as § 16, 17 R. S.] Original note to § 18. "1 R. L. 320, § 7, varied so as to preserve all such papers, as from their nature, ought to be kept."

[S 19. Same as § 18 R. S. Original note. "1 R. L. 320, § 10. New as to copies for supreme court and court of chancery."

[$ 20. Same as 19 R. S.] Original note. "New and declaratory." [S 21. Substantially enacted in § 20 R. S.] Original note. "New. The necessity of such a provision is evinced by the fact that a special act of the legislature became necessary in 1825, to restrict the exercise of these powers. Vide Sess. Laws, p. 391, § 4."

[S 22 to 27. Substantially enacted § 21 to 26 R. S.]

Original note to § 27. It is a source of great complaint, that parties to suits are now obliged to go into a court of equity to compel a discovery of matters essential to their defense. The supreme court has followed the English courts already to some extent, vide 6 Cow., p. 59, 62; 4 Cow., 399; 3d do., 17; 2 Cow., 623 and 592, where the cases are very faithfully collected and clearly stated by the reporter. But the power of the court is limited, and its extent is in many cases doubtful. Nor does it reach many to which it might be extended with perfect safety; not only with great convenience to the parties, and to the saving of much unnecessary expense, but often to the preservation of rights, which could in no other way be protected. The law of the court of chancery is so well settled, that there cannot be the least difficulty in applying it in the supreme court. For these reasons the last six sections have been prepared, and it is believed in such a way as to secure the rights of parties, and prevent all danger of abuse."

[S 28. Same as enacted.] Original note. "New. See ante Title II, $42."

"TITLE V. Of the circuit courts, sittings and courts of oyer and terminer."

[Enacted as Title IV.]

[§ 1, 2, 3, 4, 5. Same as enacted.] Original note to § 5. The words ' and courts of oyer and terminer,' new.”

[S 7, 8. Same as enacted. Original note to § 8. "Laws of 1823, p. 210, 6, varied."

[S 9, 10, 11, 12. Same as enacted.] Original note to § 12. "New, so far as it makes it the duty of the judge to attend."

[$ 23. Reported as "new," and same as enacted.]

IS 24. Reported as "new," and same as enacted, except that after the words "supreme court," the words "at its next term," in the report were stricken out, and the words " or if he be absent, or his office be vacant, the senior judge thereof," inserted by the legislature.]

[$ 25. Reported as "new," and same as enacted, except that the words "the justice ordering such court," were substituted by the legislature for "the supreme court," in the report.]

[$ 26. Same as enacted.] Original note. "1 R. L., 336, § 5 and 6, limited to the city of New York."

[S 27. Same as enacted.] Original note. "ib. and partly new."

35. Same as enacted, except that the words "and any two of the judges of the county courts of the same county," preceding the words "shall have power," were stricken out by the legislature, and “thirty days" substituted for "sixteen days."] Original note. Conformable in principle to 1 R. L., p. 339, § 15, with such modifications as seemed to be requisite by the new organization of the judiciary."

[$ 38. Same as enacted.] Original note. "Abbreviated, and conformed to the laws concerning grand and petit jurors."

[$ 39. Partially enacted in § 39 R. S.] Original note. "Conformable to practice."

S 40. Same as enacted.] Original note. "The court of oyer and terminer of New York has a separate seal. (1 R. L., 339, § 14.) The other courts of oyer and terminer, it is believed, have generally adopted the seal of the court of common pleas of the county.'

[S 41 to 45. Same as enacted.] Original note to § 42, 43. "Varied from laws of 1823."

"TITLE VI.-Of the courts of common pleas and general sessions of the peace, in the several counties of this state; and the mayors' courts of cities."

"ARTICLE I. Of the courts of common pleas and general sessions of the peace, in the several counties, except the city and county of New York."

[This division of the Title into Articles was not retained by the Legislature.]

[S1. Same as enacted, except that sub. 2 was substituted by the legislature in lieu of the following:

"2. To grant new trials for irregularity, in all cases where they shall deem it necessary;

"3. To grant new trials for other causes, with the concurrence of a judge of the degree of counsellor at law in the supreme court, who was present at the trial, and not otherwise."]

Original note. "1 R. L., 142, § 3. Laws of 1823, p. 40, § 1; and partly new. Smith's Hist. N. Y., 374; 2 R. L., Appendix X., for the organization of courts of common pleas.'

[S 12. Same as enacted.] Original note. "Laws of 1823, p. 40, § 5. Exception of Westchester omitted, it being presumed that a seal has been since prepared for that county."

[S 13. Substantially same as enacted.] Original note. "Laws of 1823, p. 40, § 1, as to courts of common pleaş. Conformable to practice, as to the courts of general sessions."

[S 19. Same as enacted; except that the section as reported contained the following exception after the first clause, which was stricken out by the legislature: "except in those counties where the duration of such term is otherwise prescribed by law." Original note. "Laws of 1819, p. 305, varied so as to conform to the special provisions made since the passing of the act of 1819."

"CHAPTER II."

"OF COURTS OF PECULIAR AND SPECIAL JURISDICTION.”

"TITLE I. Of surrogates' courts."

[S 1. Same as enacted, except as to sub. 1, which was reported as follows: "1. To take the proof of wills of real and personal estate."] Original note. "The jurisdiction of surrogates is very undefined, and may give rise to the most serious questions. By the act of 1823, Session Laws, p. 62, which abolished the court of probates, the jurisdiction of surrogates was enlarged, and they were authorized to proceed 'in the manner and according to the powers heretofore used and exercised by the judge of the court of probates.' The judge of the court of probates was vested 'with all and singular the powers and authorities, and had the like jurisdiction, in testamentary matters, as the governor of the late colony of New York had, as judge of the prerogative court, or court of probates of the said colony,' 1 R. L. 444, and the references at the beginning of the act. What was exactly the foundation of the authority of the colonial governor, and what its extent, are questions which have already much agitated our courts. An idea is entertained by some, that he possessed all the powers and jurisdiction of the ecclesiastical courts in England. Our researches would enable us to throw some light on the subject; but the present occasion does not seem to demand or justify a discussion of the topic. They have satisfied us, that a clear and distinct limitation of the power of those courts, is very necessary. It has been attempted in the above section, with an enumeration of the powers possessed. In preparing it, the law of Maryland, on the same subject, has furnished some useful hints."

[S 2. Same as enacted.] Original note. "New. The first part declaratory; the latter part deemed useful, as well for the convenience of surrogates in the country, as that of the public in knowing when they can certainly attend."

[S 3, 4, 5. Same as enacted.] Original note. "§ 4 slightly varied. 5 new; to supply an existing omission, and to furnish public evidence of the change."

[$ 6, 7. Same as enacted, except that in sub. 2 of § 7, the part after "proof thereof" was added by the legislature; and except also that the 5th sub. was somewhat varied. The 1st sub. of § 6 was amended by amendatory act of 1830, chap. 320.]

Original note to amendment. "Some surrogates have doubted their power, under the provision as it now stands, to issue a subpoena to another county."

Original note to S 7. "New. gate. Its utility is obvious." [S 8, 9. Same as enacted.] sions made general."

Suggested by an experienced surro

Original note to § 9. "Various provi

[S 10 proposed to confer a general authority to award issues for the trial of disputed questions of fact, but was not enacted.]

[S 11, 12, 13, 14. Same as enacted § 10, 11, 12, 13 R. S.]Original note

note to

11. "New; but deemed necessary:" to § 14. "New; taken

from laws of Massachusetts, 2 vol. p. 458, § 4."

"TITLE IV. Of courts held by justices of the peace."

"ARTICLE I. Of the jurisdiction of justices' courts."

[$ 1, 2. Same as enacted.] Original note to sub. 4 of § 2. “§ 23, p 290, varied, so as to include sums between fifty and one hundred dollars."

[$ 3. Same as 4 R. S. except that the words "as hereinafter provided," were added by the legislature to sub. 2.]

Original note. "The words in italic, 'named as a party' new, and intended to give a justice jurisdiction, where a penalty is directed by statute to be sued for in the name of some public officer or agent, for the use of the state, or where it is sued for in the name of the state." [S 4. Same as § 5 R. S.]

Original note. "Conformable, as to executors and administrators, to present law, § 1. Residue new, declaratory, and accordant with principles settled by the supreme court, (see 7 John. 356; 5 do. 347; 1 Cowen, 260, and 18 John. 418,) and as to town officers, conformable to R. S. part 1, ch. 11."

$5 as reported; materially varied by the legislature in § 6 R. S.

Original note. "§ 28, p. 292, the language extended so as to reach the evil, according to the spirit of the case in 13 John. 218, and to prevent evasion."

"ARTICLE II. Of the commencement of suits, and the service and return of procèss.” [S 10. Same as § 11 R. S.] Original note. "New in form, but conformable to the existing law."

[S 11. Same as § 12 R. S., except that in sub. 2, after the words "day," the words "the hour of delivery to the constable shall be disregarded, and," were stricken out by the legislature.] Original note to sub. 2. "New; but resulting from the 8th § R. L. and the decision in 1st Cowen, 115. Sub. 3 new."

[$ 12, 13. Same as § 13, 14 R. S.] Original note. "Partly new; to remove an ambiguity."

[S 14, 15, 16. Same as 15, 16, 17 R. S.] Original note to sub. 3 of § 16. "Part of § 5, p. 281, varied so as to allow of other proof than the oath of the party, and qualifying the departure." To sub. 4. "Same § varied in requiring defendant to be freeholder of the same county."

[S 17. Same as 18 R. S.] Original note. "The last clause new; to remedy the inconvenience and frequent injustice occasioned by leaving it indefinite."

[S 18. Same as § 19 R. S., except that the words "except where the suit shall have been commenced by summons," were inserted by the legislature.]

Original note. "§ 5, proviso extended to all cases. (See 10 John. 114; 12 do. 422.) Varied by omitting 'orally on oath,' as being equally necessary for the protection of the justice and the defendant, that the evidence should be preserved in writing."

[S 21. Same as § 22 R. S.] Original note. "New. Although in

practice the constable endorses a return on the warrant, the law does not require it; but it seems useful and proper."

[S 22. Same as 25 R. S., except that the concluding words after commenced," were added by the legislature.]

Original note. "New. The control of the justice and constable over the defendant is now wholly undefined, except by the vague expression in the 5th section, and that the constable serving such warrant shall detain the defendant in his custody, until discharged by due course of law.""

[$ 23, 24, 25, 26. Same as § 26, 27, 28, 29 R. S., except that in § 25, the words after "disinterested witnesses," were added by the legislature; and except also that in § 26, after "conditioned," the following words of the reported § were stricken out by them: "pay such defendant all damages and costs which he may sustain, by reason of the issuing such attachment, if no judgment be recovered thereon, within three months after the date of such bond."] Original note. "§ 23 and 25 varied to conform to chapter 5 of the second part R. S., and the penalty increased to correspond with the increased jurisdiction." [$ 28. Same as § 30 R. S.]

Original note. " 23, varied. The act seems to authorize the seizure of all the defendant's personal property, however trivial the amount. There is great danger of abuse, and there is no more difficulty in a constable's attaching sufficient, than there is in his levying on sufficient to satisfy an execution. In the latter case, he would be punishable for an abuse of his authority; but not, it is presumed, under an attachment, as it gives no information of the amount of the claim.”

[S 29. Same as § 31 R. S., except that the words after "residence of the defendant," were added by the legislature.] Original note. "Varied so as to require an inventory, as well for the protection of the defendant as the constable (10 J. R. 129; 16 J. R. 121)." [S 30. Same as § 32 R. S., except that "three months" in the report, were altered to "six months" in the statute.] Original note. "Varied as to time when judgment shall be obtained." [S 32, 33, 34. Same as § 34, 35, 36 R. S.] "Necessary to carry out the previous provision."

Original note to § 34.

"ARTICLE III. Of the appearance of parties."

[S 35, 36, 37, 38. Same as § 39, 40, 41, 42 R. S., except that in § 42 R. S. the words "shall not appear on the return day of such process, or if he," were inserted by the legislature.] Original note to § 35. "Declaratory." To § 36. "New." To § 37. "The latter part in conformity to 12 J. R. 434." To § 38. "See 2 Cowen, 430."

[S 39. Same as § 43 R. S.] Original note. "The two preceding sections are new, but in conformity substantially with the existing law."

[S 40, 41. Same as § 44, 45 R. S.] Original note to § 40. "See 9 J. R. 352, 354. To § 41. "New, as settled by supreme court, 1 Cowen, 256; 2 do. 421; 1 do. 113; 2 do. 429; 14 J. R. 369; 15 do. 246."

[$ 42. Reported as "new; founded on 9 J. R. 140; 20 do. 309." It was partially adopted in § 46 R. S.]